SHELL COMPANY OF GHANA LTD. v. AYIMAVOR AND ANOTHER [1971] 1 GLR 51

DIVISION: IN THE COURT OF APPEAL

DATE: 5 NOVEMBER 1970

BEFORE: APALOO, SOWAH AND ARCHER JJ.A.

CASES REFERRED TO

(1) Amakom Sawmill & Co. v. Mansah [1963] 1 G.L.R. 368, S.C.

(2) Benham v. Gambling [1941] A.C. 157; [1941] 1 All E.R. 7; 110 L.J.K.B. 49; 164 L.T. 290; 57 T.L.R. 177, H.L.

(3) Naylor v. Yorkshire Electricity Board [1967] 1 Q.B. 244; [1966] 3 W.L.R. 654; [1966] 3 All E.R. 327, C.A.; [1968] A.C. 529; [1967] 2 W.L.R. 1114; [1967] 2 All E.R. 1, H.L.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court in an action by the administrators of the estate of a deceased person under the Civil Liability Act, 1963. The facts are fully stated in the judgment of the court.

COUNSEL

J. Quashie-Idun for the appellants.

C. Quist for the respondents.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. The plaintiffs are the administrators of the estate of the late Madam Akle Ayimavor of Kopehe and Accra. The deceased met her death as a result of a lorry accident which took place at Hwakpo junction on 5 November 1967. According to the evidence, the deceased who carried a headload, was talking to the driver of a stationary lorry at the Hwakpo-Ada junction when a car driven by a European in the defendant company’s employ emerged from the direction of Ada and violently struck her. Such was the force of the impact, that the car carried her on its bonnet for a number of yards and

[p.53] of [1971] 1 GLR 51 eventually hurled her on to the ground. She suffered serious injuries from this and her end came shortly afterwards.

The plaintiffs therefore brought a suit against the company, under the Civil Liability Act, 1963 (Act 176), claiming damages under several heads. The plaintiffs based themselves on the fact that the company’s servant was negligent. The company denied this and in the alternative pleaded that the deceased was guilty of contributory negligence. At the trial, no evidence was led on behalf of the company and the learned judge accepting the plaintiffs’ evidence, held that the company’s servant was negligent. He rejected the plea of contributory negligence raised by the company and mulcted the latter in damages aggregating the sum of N¢16,400 under various heads. The company contest that judgment by this appeal.

Mr. J. Quashie-Idun for the company argued that there was internal evidence from the plaintiffs’ own case from which contributory negligence can be found and that the judge was in error inasmuch as he held otherwise. With respect, we find nothing in that contention. The facts of the accident were all one way and were related by the plaintiffs. They were virtually uncontradicted and ineffectively challenged. We find it impossible to hold on those facts that the deceased was in part the author of her own misfortune. On the contrary, we share the learned judge’s conclusion that the company’s servant was grossly negligent and was solely to blame for the accident. It follows that this ground of appeal fails. The more serious contentions raised on behalf of the company were however on the quantum of damages and the basis on which some of the awards were made. The learned judge awarded the dependants of the deceased N¢650.00 for mental distress and proceeded to apportion it among her seven infant children. Mr. Quashie-Idun complains that that award was incompetent as the legislation which authorised this award prescribed a period of three years which has lapsed. For this submission, he points to section 18 (4) of the Civil Liability Act, 1963, which enacts: “Paragraph (b) [this enables damages to be awarded for mental distress] of subsection (1) shall have effect only in respect of a death occurring within three years after the date of the passing of this Act.”

The Act was passed on 19 April 1963 and the period limited by this section expired on 19 April 1966. The death which gave rise to this action occurred on 5 November 1967, that is after the statutory period. We agree that as damages for mental distress did not lie at common law, this award must go. Indeed Mr. Quist for the respondents concedes this.

The next head of damage which was the subject of complaint by Mr. Quashie-Idun is the damages awarded for loss of expectation of life. The actual sum awarded was N¢7,200.00. It is complained that the award was much too large and was based on wrong principles. We think we must accede to this argument. The judge arrived at the quantum by estimating the deceased’s monthly expenditure on herself. The judge assessed this at N¢80.00. He deducted this from the deceased’s monthly income of N¢110.00 and [p.54] of [1971] 1 GLR 51 obtained a balance of N¢30.00. He reckoned this as the value of dependency. He multiplied this by twenty years’ purchase and arrived at the resultant figure of N¢7,200.00. If the learned judge had been awarding damages for loss of dependency, there can hardly be any complaint about this method of ascertaining it. Indeed this method was recommended by the former Supreme Court in Amakom Sawmill & Co. v. Mansah [1963] 1 G.L.R. 368, S.C. But we think it a wrong basis to award damages for loss of expectation of life. Although the learned judge awarded the sum of N¢8,050.00 for loss of dependency, he in no way indicated how he arrived at this figure. There is clearly no evidential basis for it. We think therefore that this sum must go but we consider the sum of N¢7,200 as a fair and reasonable sum for loss of dependency.

We must now undertake ourselves the task of awarding damages for loss of expectation of life. The classical guideline for assessing damages under this head, was given by the House of Lords in 1941 in the well-known case of Benham v. Gambling [1941] A.C. 157, H.L. The criterion there laid down was said to be not the prospect of the length of days but a predominantly happy life. The case sought to establish and succeeded in establishing a low, almost nominal standard of damages for this type of claim. In that case, it gave as a guide the sum of £200. In England, this sum has remained a conventional figure rising in recent times to £500. In the 1967 case of Naylor v. Yorkshire Electricity Board [1967] 1 Q.B. 244, C.A., the English Court of Appeal, by a majority, raised an award under this head from £500 to £1,000 because of the decline in the value of money. But the principle of Benham v. Gambling was reasserted when the House of Lords, to which an appeal was taken, reduced this sum to £500 and firmly re-established the conventionality of the sum awardable under this head.

The question is, what would be fair compensation to award to the personal representatives of the deceased who at 35 was said to be in good health, was active in the textile trade and was earning enough to support a family of seven and an aged mother? There is hardly any evidence of the deceased’s personal life, her habits or mode of living. In so far as the evidence provides any information about her, she hailed from Kopehe near Barlekpo in the Ada district but seemed to have lived in Accra for a considerable time. She lost her husband a year before her death but the evidence does not suggest that she had given to despondency on this account. There is nothing in the evidence to suggest that her life was other than happy and we think, barring unforeseen mishaps, the deceased had before her, the prospect of a reasonably happy life which was cut short by the accident. In all the circumstances, and bearing in mind the diminished purchasing power of the Ghanaian cedi, we would award compensation of N¢1,000.00 under this head.

The learned judge also awarded to the plaintiffs the sum of N¢150.00 and N¢350.00 for pain and suffering and funeral expenses respectively. It is not disputed that these are legitimate heads of damages nor was the quantum or the basis of the award faulted in any way. Accordingly, these [p.55] of [1971] 1 GLR 51 awards will stand. We think therefore that the plaintiffs are entitled to damages as follows-. N¢

Loss of dependency .. .. .. .. .. 7,200

Loss of expectation of life .. .. .. .. 1,000

Pain and suffering .. .. .. .. .. 150

Funeral expenses .. .. .. .. .. 350

This makes a total of N¢8,700. We therefore reduce the aggregate damages awarded to the plaintiffs from N¢16,400 to N¢8,700.

Mr. Quist for the respondents invited us to vary the judgment by awarding compensation to the deceased’s mother and sister for loss of dependency. It was deposed to in evidence that these two were dependent on the deceased at the date of her death. The learned judge declined to include them in the apportionment because he thought, we think erroneously, that they were not specifically referred to as dependants in the statement of claim. Mr. Quist has referred us to the statement of claim in which these two were included together with the deceased’s children as dependants. The basis of their exclusion was therefore gone and we think this is a case in which we should exercise our powers under the Supreme Court Rules, 1962 (L.I. 218), r. 32 and vary the judgment to correct this evident error.

According to the evidence, the deceased’s mother was about 59 and was being maintained by the deceased. This is an inherently credible story and accords with our own experience. We think Korkor Keitey the deceased’s mother should share in the compensation award for loss of dependency. How the deceased’s sister Yamoyo came to be dependent on the deceased is unclear to us. She was 33 at the date of the accident and was therefore only two years younger than the deceased. In normal circumstances, a woman of 33 will not depend for support on a sister who is only two years her senior. No special reason was given in evidence why Yamoyo came to depend on her sister for support. Although the word “invalid” was placed against her name in the statement of claim, it was not deposed in evidence that she was in poor health and on that account was looked after by the deceased. We are therefore not satisfied that the deceased’s sister was dependent on her at the date of her death.

In view of the reduction of the damages we reapportion the entitlements to loss of dependency as follows:—

N¢

1. Korkor Keitey 59 500.00

2. Kabu 15 700.00

3. Tetteh 1 800.00

4. Tei 9 850.00

5. Kabuki 7 950.00

6. Ablayo 5 1,050.00

7. Abiba 3 1,150.00

8. Gbormio 11⁄2 1,200,00

N¢7,200.00

[p.56] of [1971] 1 GLR 51

We direct that the total sum of N¢6,700 due to the infants shall be paid to the public trustee who shall hold the same as trustee for the infants and shall apply this sum for their education and benefit. We further direct that the sum of N¢6500.00 be paid to the deceased’s mother Korkor Keitey and that the balance of the judgment debt, namely, N¢1,500.00 and the costs be paid to the plaintiffs as the personal representatives of the deceased.

As the company has been partially successful in this appeal, we award the respondents one-half of the costs of this appeal fixed at N¢41.25.

DECISION

Appeal dismissed.

Damages for mental distress disallowed.

B. T. A.